As Aide, Kagan Battled Colleague Over Policy

WASHINGTON — Elena Kagan was not responding to messages, so Christopher Edley Jr. fired off an exasperated e-mail message to higher-ranking White House officials. He had just learned that Ms. Kagan’s office was preparing a policy for President Bill Clinton to discourage “social promotion” in schools.

To Mr. Edley, a consultant to the Clinton administration, that was code for flunking more poor children. But he could not get Ms. Kagan’s attention.

“I have had no success contacting Elena to learn details or give feedback on this policy,” he wrote. “I have tried email, voice mail, hallway greeting, and conversation with her secretary.” If he could not reconcile himself to the policy, Mr. Edley added, he would have to decide “whether I need to resign.”

The tension between Ms. Kagan and Mr. Edley that day in 1998 went deeper than unanswered messages and an ultimately forgettable policy clash. At the heart of the dispute was a broader cleavage inside Mr. Clinton’s White House between two visions for Democratic politics, one that adhered to traditional liberal conceptions of social justice and aid to the disadvantaged and another that sought to nudge the party to the center after a generation of electoral losses.

Along that fault line, Ms. Kagan, now President Obama’s nominee to the Supreme Court, was situated squarely in the camp of the centrist New Democrats as deputy to her college friend Bruce Reed, the White House domestic policy director and veteran of the Democratic Leadership Council that advocated a “third way.” Mr. Reed coined the phrase “end welfare as we know it” and promoted the measure that Mr. Clinton signed into law requiring work and setting time limits. He advocated charter schools, free-trade pacts and more police officers on the beat.

And for two years, from 1997 to 1999, Ms. Kagan served as Mr. Reed’s lieutenant in those battles. Whether her work reflected her personal beliefs or those of her boss is still debated in Clinton circles, but either way her formative years in politics were spent in the trenches with Mr. Reed.

“She was a full partner with him in trying to move the debate,” said John D. Podesta, Mr. Clinton’s last White House chief of staff and now an outside adviser to Mr. Obama. “I don’t know that you can ascribe all of Bruce’s views to her. On the other hand, I think they were fairly simpatico.”

Chris Jennings, the president’s health care adviser, said Ms. Kagan and Mr. Reed “share similar philosophies” that government should empower people but not create dependency. He added, however, “a clone she is not.”

Perhaps no other issues during her time with Mr. Reed put her in the cross hairs of an ideological firefight as much as Mr. Clinton’s project to improve race relations. Born out of his second inaugural address promise to become a “repairer of the breach,” the initiative exposed the breach inside Mr. Clinton’s own team, according to interviews with participants and a review of 4,700 pages of documents in Ms. Kagan’s files released this month.

Leading one side was Mr. Edley, a Harvard Law School professor who was recruited to consult on the project and resisted anything that seemed to abandon core progressive values. On the other were Mr. Reed and Ms. Kagan, who wanted less talk of grievance and more focus on initiatives that promoted both opportunity and responsibility.

From the start, Mr. Reed and Ms. Kagan resisted the idea of a race commission, sending a March 1997 memorandum criticizing “serious flaws” with the idea and arguing instead for a multiday White House conference followed by town-hall-style meetings. Ultimately, Mr. Clinton appointed a seven-member commission to study race.

“We made our case, and we lost for the most part,” Mr. Reed recalled in an interview.

In handwritten notes, Ms. Kagan recorded skepticism. “Mission too focused on PR, not enough on research/report,” she wrote. “Focus should be on future, not Kerner,” she added, referring to a landmark 1968 study of American race relations.

Photo

Elena Kagan, in 1999.Credit
William J. Clinton Presidential Library

After a May 1997 meeting where they were told that the project would be 80 percent dialogue and 20 percent policy, they received a strategy plan. “Looks like 20% substance was an extremely optimistic estimate,” Mr. Reed wrote Ms. Kagan.

A month later, Mr. Clinton announced his project, but tensions persisted. In July, Mr. Reed and Ms. Kagan sent Mr. Clinton thoughts emphasizing the “equal opportunity and shared responsibility” formula that had been his hallmark. Mr. Edley responded the same day, arguing against “so much emphasis on the Clinton record, past Clinton initiatives, Clinton themes.”

By fall, the project was developing policy initiatives and Ms. Kagan forwarded one list to Mr. Reed. “Pretty exciting stuff,” she wrote, evidently in sarcasm. Next to a proposal to draft a presidential letter calling young people to action, she scribbled, “By November 15, a letter!” In November, Mr. Reed and Ms. Kagan sent the president their own “race-neutral opportunity agenda,” including expanding access to banks for poor Americans; deploying more police officers to local communities; and enacting “education opportunity zones” to promote public school choice, end social promotion and remove bad teachers.

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In January 1998 came the eruption over the social-promotion initiative that prompted Mr. Edley to threaten briefly to resign. Just weeks later, he sent a memorandum outlining various themes. Ms. Kagan wrote on it: “I’m all in favor of pushing hard on (3) — his ‘obsession’ — so we can get our way on (4).” (No. 3 was “Public Leadership” emphasizing inclusion while No. 4 was “Policy Action” to overhaul but preserve affirmative action.)

“We thought the administration had a responsibility to propose big ideas that would expand opportunity, not just have a conversation about these issues without concrete action to address them,” Mr. Reed said in the interview.

Mr. Edley, now dean at the law school of the University of California, Berkeley, declined an interview request. But Judith A. Winston, the project’s executive director, recalled a “constant push and pull” with the White House staff. “For any policy to be really effective in eliminating the disparities, they had to be targeted by race, not just race neutral,” Ms. Winston said.

By summer 1998, Mr. Edley was drafting a “race book” to sum up the project. But he believed he was “setting up for failure because I have no authority from the president to do anything except spin wheels,” Mr. Edley confided in August to Maria Echaveste, a deputy White House chief of staff who would later become his wife.

The next day, a White House aide wrote Mr. Reed and Ms. Kagan that Mr. Edley’s ideas on education “are not likely to be ours.” In frustration, Mr. Edley sent Ms. Kagan ideas a week later and asked, “So, tell me honestly: Are you on board, or are you ‘actively skeptical’?”

Still actively skeptical, by all indications. In September, several aides sent her critiques of Mr. Edley’s draft race book, taking issue, for example, with his ideas on education and law enforcement. The divide was so deep that another aide wrote Mr. Reed and Ms. Kagan in January 1999 about “solving the Edley problem” and complaining about his “flagrant process foul.” Two months later, there was another flare-up when Mr. Edley pressed for an executive order on racial profiling.

“The caution of the White House staff was unsurprising,” Mr. Edley wrote, resignedly. He speculated that the final report would have a dissent by White House staff members: “I hope the memorandum is shorter than the book.” Mr. Reed and Ms. Kagan forwarded Mr. Edley’s memo to Mr. Podesta along with an angry handwritten note, saying: “John — This simply cannot be allowed to happen. We have policy processes for a reason.”

The issue reached a climax in March when Mr. Reed drafted a brutal appraisal of Mr. Edley’s book in his and Ms. Kagan’s names, saying it was “not a bold vision of race and America for the 21st century,” calling its conclusion “hopelessly trite and naïve,” and adding “we doubt that this is the caliber of book the president was hoping for or expecting.”

For Ms. Kagan, though, Mr. Reed’s assessment went too far. She deleted the most inflammatory language. Next to one harsh sentence, she wrote, “Maybe too much.” By the next sentence, she wrote, “Definitely too much.” Finally, she crossed out her name, making the memorandum solely from Mr. Reed.

In the interview, Mr. Reed said Ms. Kagan had taken her name off because she was leaving the White House. But he agreed that she thought he was going too far. “She was toning down my less-than-judicious tone,” he said. “Looking back, there’s no question that she was right.”

In the end, the schism was too profound and the race book was shelved.

A version of this article appears in print on June 15, 2010, on Page A21 of the New York edition with the headline: As White House Aide, Kagan Battled Colleague Over Policy Direction. Order Reprints|Today's Paper|Subscribe